UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION DIOCESE OF FORT WAYNE-SOUTH BEND, INC.; CATHOLIC CHARITIES OF THE DIOCESE OF FORT WAYNE SOUTH BEND, INC.; SAINT ANNE HOME & RETIREMENT COMMUNITY OF THE DIOCESE OF FORT WAYNE- SOUTH BEND, INC.; FRANCISCAN ALLIANCE, INC.; UNIVERSITY OF SAINT FRANCIS; and OUR SUNDAY VISITOR, INC., v. Plaintiffs, KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the U.S. Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the U.S. Department of Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF TREASURY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: COMPLAINT AND DEMAND FOR JURY TRIAL 1. This lawsuit is about one of America s most cherished freedoms: the freedom to practice one s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself

from making them more widely available. But the right to such services does not authorize the Government to force the Plaintiffs to violate their own consciences by making them provide, pay for, and/or facilitate those services to others, contrary to their sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ( RFRA ), protects religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights. 2. This country was founded by those searching for religious liberty and freedom from religious persecution. And since the founding of this country, religious organizations such as Plaintiffs have been free to fulfill their religious beliefs through service to all, including the underprivileged and underserved, without regard to the beneficiaries religious views. As a result, Plaintiffs and other such organizations have played a vital role in securing and protecting the civil liberties of all citizens. 3. The U.S. Constitution and federal statutes protect religious organizations from governmental interference with their religious views particularly minority religious views. The founders recognized, through their own experiences, that the mixture of government and religion is destructive to both institutions and divisive to the social fabric upon which the country depends. The Constitution and federal law thus stand as bulwarks against oppressive government actions even if supported by a majority of citizens. This wall of separation between church and state is critical to the preservation of religious freedom. As the Supreme Court has recognized, [t]he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority. Through this lawsuit, Plaintiffs do not seek to 2

impose their religious beliefs on others. They simply ask that the Government not impose its values and policies on Plaintiffs, in direct violation of their religious beliefs. 4. Under current federal law described below (the U.S. Government Mandate ), many Catholic organizations must provide, or facilitate the provision of, abortifacients, sterilization, and contraceptive services to their employees in violation of the centuries old teachings of the Catholic Church. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow, discretionary exemption to this U.S. Government Mandate for religious employers. Group health plans are eligible for the exemption only if they are established or maintained by religious employers, and only if the religious employer can convince the Government that it satisfies four criteria: The inculcation of religious values is the purpose of the organization ; The organization primarily employs persons who share the religious tenets of the organization ; The organization primarily serves persons who share the religious tenets of the organization ; and The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Thus, in order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that they are sufficiently religious. 5. It is unclear whether Plaintiffs health benefits plans qualify for this religious exemption. 6. With respect to the fourth requirement, it is unclear whether Plaintiffs Franciscan Alliance and the University of Saint Francis s health benefits plans qualify for this religious exemption because, for example, while they are nonprofit charitable organizations that are firmly 3

grounded in the tenets of Catholicism, they appear not to fall within sections 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. 7. The U.S. Government Mandate, including the narrow exemption for certain religious employers, is irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling need to force Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive governmental examination of their religious missions. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing its interest in increased access to these services, since these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly enacted law. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of their sincerely held religious beliefs. 8. Despite repeated requests from Church leaders, the Government has insisted that it will not change the core principle of the U.S. Government Mandate that Plaintiffs must subsidize and/or facilitate providing their employees free access to drugs and services that are contrary to Plaintiffs religious beliefs. If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government s power. Such an oppression of religious freedom violates Plaintiffs clearly established constitutional and statutory rights. 9. The First Amendment also prohibits the Government from becoming excessively entangled in religious affairs and from interfering with a religious institution s internal decisions 4

concerning the organization s religious structure, ministers, or doctrine. The U.S. Government Mandate tramples all of these rights. BACKGROUND I. PRELIMINARY MATTERS 10. Plaintiff, Diocese of Fort Wayne-South Bend, Inc. ( Diocese ), is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 11. Plaintiff, Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. ( Catholic Charities ), is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 12. Plaintiff, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc. ( St. Anne Home ), is a nonprofit health care and retirement community incorporated in Indiana with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 13. Plaintiff, Franciscan Alliance, Inc. ( Franciscan ), is a nonprofit hospital system incorporated in Indiana with eleven hospitals in Indiana, two hospitals in Illinois, and its principal place of business in Mishawaka, Indiana. It is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 14. Plaintiff, University of Saint Francis ( Saint Francis or University ), is a nonprofit four year liberal arts university incorporated in Indiana with its principal place of 5

business in Fort Wayne, Indiana, and a regional campus in Crown Point, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. It is also an educational organization under Section 170(b)(1)(A)(ii) of the Internal Revenue Code. 15. Plaintiff, Our Sunday Visitor, Inc. ( Our Sunday Visitor ), is a nonprofit Indiana corporation with its principal place of business in Huntington, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 16. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity. 17. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity. 18. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity. 19. Defendant U.S. Department of Health and Human Services ( HHS ) is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act ( APA ). 20. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA. 21. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA. 22. This is an action for declaratory and injunctive relief under 5 U.S.C. 702; 28 U.S.C. 2201, 2202; and 42 U.S.C. 2000bb-1(c). 6

23. This Court has subject-matter jurisdiction over this action under 28 U.S.C. 1331, 1343(a)(4), and 1346(a)(2). 24. Venue is proper in this Court under 28 U.S.C. 1391(e)(1). A. Diocese of Fort Wayne-South Bend, Inc. ( Diocese ) 25. Plaintiff Diocese is the civil law entity for the Diocese of Fort Wayne-South Bend, which is the local embodiment of the Universal Roman Catholic Church, a community of the baptized confessing the Catholic faith, sharing in sacramental life, and entrusted since January 2010 to the ministry of Bishop Kevin C. Rhoades. The Diocese encompasses fourteen counties located in Northeast Indiana, including Allen County, Indiana. 26. Bishop Rhoades is the sole member of the Diocesan nonprofit corporation. 27. The Diocese, through its eighty-one local community parishes and two oratories situated throughout the Diocese, serves the spiritual needs of its Catholic population of approximately 160,000. 28. Through its parishes, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the Fort Wayne-South Bend area. The Diocese also provides numerous other opportunities for prayer, worship, and faith formation. 29. In 2011, approximately 2,582 adults and youth received formation in the Catholic faith through parish-level and Diocesan classes, lectures, and retreats. 30. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at five colleges and universities within its borders. 31. Through its parishes, the Diocese also serves the needs of its communities with programs such as chapters of the St. Vincent DePaul Society, food pantries, soup kitchens, adopt-a-family programs at Christmas, and visits to nursing homes. These parishes serve an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of 7

material assistance without regard to whether the recipient is Catholic or non-catholic. In 2010, the Diocese provided over $1 million dollars in support to such programs. 32. In the fiscal year ending June 30, 2010, the Diocese provided approximately $3.9 million dollars in financial assistance to, among others, Women s Care Center, St. Augustine Soup Kitchen, Little Flower Food Pantry, St. Mary s Soup Kitchen, and Catholic Charities. Each of these organizations provides services to individuals from a diversity of faiths, means, and heritages. 33. Neither the Diocese nor its parishes keeps a tally of persons served through the parishes outreach programs, nor do they request to know the religious affiliation of those served. 34. Church law, canon law, requires a diocesan bishop to establish Catholic schools based on the principles of Catholic doctrine, with teachers who are outstanding for their correct doctrine and integrity of life, so that schools imparting an education imbued with the Christian spirit are available to the faithful in the diocese. See Code of Canon Law, Canons 802 1 and 803 2. 35. The Diocese conducts its educational mission through its schools. 36. The first Catholic school opened in Fort Wayne-South Bend in 1846, at least ten years before the city had a public-school system. 37. The Diocese currently operates a total of forty-one private, Catholic schools in its geographic territory, thirty-seven elementary and four high schools. 38. Catholic schools within the Diocese have been among those schools nationwide to receive the U.S. Department of Education s Blue Ribbon Schools Award. 8

39. Presently the Diocese has approximately 10,783 students enrolled in its elementary schools and approximately 3,125 students enrolled in its high schools. Enrollment in Diocesan schools is open to Catholics and non-catholics. 40. The Diocesan schools serve poor and underprivileged students; approximately 2,446 of its students live at or below the federal poverty line. 41. The Diocese s educational mission is all the more important in Indiana where recent legislation gives low- to moderate-income families vouchers to transfer their children from a public school to, among others, one of the Diocese s private schools. 42. To make a Catholic education available to as many children as possible no matter their faith, means, or heritage the Diocese expends substantial funds in tuition assistance programs. For example, for the 2011-2012 academic year, the Diocese has granted over $2.1 million dollars in financial aid through its four high schools. 43. Diocesan schools also serve minorities. For example, Bishop Luers High School has approximately 20% minority students and St. Adalbert Elementary School has approximately 91% minority students. 44. The Diocese employs Catholic and non-catholic teachers in its schools who must have a knowledge of and respect for the Catholic faith, abide by the tenets of the Catholic Church as they apply to that person, exhibit a commitment to the ideal of Christian living, and be supportive of the Catholic faith. 45. The Diocese has approximately 2,741 employees, with over 1,500 classified as full-time (working an average of at least 30 hours per week) and over 1,200 classified as parttime (working an average of less than 30 hours per week). 9

46. The Diocese does not know how many of those it hires or serves are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Diocese s religious exercise. 47. Consistent with Church teachings on social justice, the Diocese makes health insurance benefits available to its religious personnel, seminarians, and full-time employees. Approximately 116 active and retired priests, religious sisters and seminarians of the Diocese, and approximately 1,043 of the Diocese s full-time lay employees participate in the Diocesan employee health plan. 48. The Diocesan employee health plan is a self-insured plan. That is, the Diocese does not contract with a separate insurance company that provides health coverage to its employees. Instead, the Diocese itself underwrites its employees medical costs. 49. Consistent with Church teachings regarding the sanctity of life, the Diocesan employee health plan specifically excludes coverage for abortion, sterilization, and contraceptives. 50. The Diocesan health plan year begins each year on January 1st. 51. The Diocesan health plan meets the Affordable Care Act s definition of a grandfathered plan and includes a statement in plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). 10

B. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. ( Catholic Charities ) 52. Plaintiff Catholic Charities a nonprofit corporation affiliated with the Diocese was created in 1922 to provide organized, concerted charitable efforts. Bishop Rhoades is a member of the nonprofit corporation. 53. Catholic Charities provided social services to over 22,500 people in 2011. 54. The more than twelve programs run by Catholic Charities at locations in and around the Fort Wayne-South Bend community provide a panoply of services including adoption and pregnancy services, food pantries, refugee resettlement, immigration services, retired senior volunteer programs, senior employment programs, Hispanic health advocacy, foreclosure prevention, community education, and many other community services. 55. For example, Catholic Charities Resource and Referral Services, which distributed over $233,918 in fiscal year 2011, serves as an integral part of the Fort Wayne community s services by helping families receive assistance for their basic needs, such as housing, utilities, food, clothing, personal products, and bus passes. Resource and Referral Services also helps families that are facing the disconnection of their utilities, but are above the maximum income level to qualify for the Energy Assistance Program. 56. Together, Catholic Charities two food pantries served over 15,000 individuals from 2010 to 2011, one-third of who were new to the pantry. When possible, the food pantries distribute to their clients hats, scarves, blankets, mittens, toiletries, personal-care items, nonperishable products, recipes, community referrals, and nutrition and food-handling safety information. 57. In Fort Wayne, Catholic Charities Adoption and Pregnancy Services facilitates the placement of newborn infants, in addition to home studies for agency, private, stepparent, 11

relative, special-needs, and international adoptions. Over the years, Catholic Charities has placed more than 1,600 children in homes through its adoption program. 58. Catholic Charities recently entered into an agreement with the U.S. Conference of Catholic Bishops Migration and Refugee Services to participate in the Unaccompanied Alien Children Program, which provides for the release and family reunification and long-term foster care of unaccompanied, undocumented children who have been taken into custody by immigration officials. There are no statistics on this program yet. 59. Catholic Charities own Refugee Resettlement program, during fiscal year 2010-2011, resettled and provided services to a total of 111 refugees. Refugee health advocates and interpreters assisted with approximately 1,051 appointments for infectious disease control. 60. Volunteers from Catholic Charities Retired Seniors Volunteer Program ( RSVP ) provide free services to the elderly. According to the Points of Light Institute, during fiscal year 2010-2011, RSVP volunteers provided services to the community that had a privatesector value of over $2.5 million dollars. 61. In addition to serving older adults, in fiscal year 2010-2011, Catholic Charities RSVP volunteers provided 900 backpacks filled with school supplies to children in need and lazy-eye screenings for more than 500 children. RSVP volunteers also helped 100 individuals through its new Volunteer Income Tax Assistance program that provides tax assistance to lowincome individuals. 62. Catholic Charities serves people in need without regard to their religion. It does not ask whether the people it serves are Catholic and, therefore, it does not know whether they are Catholic. 12

63. Catholic Charities does not inquire about the religion of its applicants for employment. As a result, it does not know how many of its employees are Catholic. 64. Catholic Charities thirty-nine full-time employees are offered health insurance through the Diocesan health plan, which does not cover abortion, sterilization, or contraceptives. 65. Though the Government s position is unclear, it appears that if an entity qualifies as a religious employer for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity s group health plan would also receive the benefit of the exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. at 16,502 (Mar. 21, 2012). 66. If the Diocese qualifies as a religious employer under the exemption to the U.S. Government Mandate, Catholic Charities thus also appears to receive the benefit of the exemption. C. Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc. ( St. Anne Home ) 67. Plaintiff St. Anne Home is a nonprofit corporation that provides quality and compassionate care for the aged in a home-like setting within a spiritual environment. Bishop Rhoades is a member of the nonprofit corporation. 68. St. Anne Home was created by Geneva Davidson who, upon her death, left the residue of her estate in trust to the Diocese with instructions that the money be used to build a home for the aged of the Diocese. On January 3, 1966, groundbreaking ceremonies were held on what is now St. Anne Home. This home was intended to be a partial solution to the lack of critical housing in the area for the elderly. 69. Since opening, St. Anne Home has become the benchmark for high-quality health care in Fort Wayne, Indiana. 13

70. Today, St. Anne Home offers residential apartments, a nursing facility, rehab suites, and adult day services. The ninety-seven residential apartments include both independent and assisted living. The nursing facility with approximately 164 beds includes specialized programs for Alzheimer s and dementia care. 71. St. Anne Home s Alzheimer s and dementia care unit provides care for approximately fifty-two people, the majority of which are women. 72. St. Anne Home serves approximately 563 people a year. 73. All of St. Anne Home s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. St. Anne Home also abides by The National Catholic Bioethics Center s A Catholic Guide to End-of-Life Decisions: An Explanation of Church Teaching on Advanced Directives, Euthanasia, and Physician-Assisted Suicide. 74. St. Anne Home s mission is to offer[] residents a culture of self-respect and dignity in a Christian atmosphere. Each resident is offered individualized, high quality health care that encourages freedom and independence while preserving their dignity and uniqueness as creations of God. This mission is driven by the Catholic belief that all human life is equally valuable and worthy of respect and support. 75. St. Anne Home s goal is to maintain the highest level of self esteem and dignity for its residents, and it strives to enrich its residents spiritual, social, cognitive, and physical well-beings. 76. Since opening its doors, St. Anne Home has been committed to serving the aged of all faiths, and that commitment continues to the present day. The residents at St. Anne Home 14

also serve the local community through their Tools for Schools program. Residents donate funds that are then used to purchase tools for children to use in local elementary schools. 77. St. Anne Home collects religious census information in order to meet the physical and spiritual needs of its residents, but does not discriminate on the basis of religion. Although the census shows that most residents identify themselves as Catholic, St. Anne Home does not know or inquire into their religious tenets. 78. St. Anne Home has approximately 310 employees and does not inquire about the religious persuasion of its applicants for employment. As a result, it does not know how many of its employees are Catholic. 79. St. Anne Home s employees are offered the Saint Anne Home of the Diocese of Fort Wayne-South Bend Employee Benefit Plan. This self-insured health plan does not cover abortion, sterilization, or contraceptives. St. Anne Home s plan year begins on January 1st. 80. St. Anne Home s self-insured health plan has undergone a number of changes and amendments since March 23, 2010, and, accordingly, does not meet the Affordable Care Act s definition of a grandfathered health plan. Additionally, the St. Anne Home plan does not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). D. Franciscan Alliance, Inc. ( Franciscan ) 81. Plaintiff Franciscan is a nonprofit health system that includes eleven facilities in Indiana, two facilities in Illinois, and a number of support companies for these facilities. It is one of the strongest regional health systems in the country and in the State of Indiana. 82. Performing more than 3.5 million outpatient services and caring for more than 100,000 inpatients annually, Franciscan s vision is to be a recognized leader in the provision of 15

high quality, value based, compassionate care through collaboration with others in the communities it is privileged to serve. 83. Franciscan s major service locations have at least 3,500 beds and it has significant market share in the markets where it provides health care. 84. Franciscan, since its founding by Mother Maria Theresia Bonzel in 1875, has been and is faithful to the Catholic Church. For example, one of Franciscan s core values is that the witness of Franciscan presence throughout the institution encompasses, but is not limited to, joyful availability, compassionate and respectful care, and dynamic stewardship in the service of the Church. 85. Another of Franciscan s core values is that Christian stewardship is evidenced by the just and fair allocation of human, spiritual, physical, and financial resources in a manner respectful of the individual, responsive to the needs of society, and consistent with Church teachings. 86. All of Franciscan s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. 87. Franciscan s goal to advocate for those in need is demonstrated by its commitment to providing charity medical care at cost. For example, from January to December of 2011, Franciscan spent over $189.3 million dollars through its various medical care and community service programs helping over 503,000 people living in poverty. 88. Franciscan s benefits to the broader community including health screenings; health fairs; programs for children, the elderly, and the community at large; and health 16

professions education from January to December 2011, benefitted more than 2.3 million individuals at a cost to Franciscan of over $63.2 million dollars. 89. Franciscan specifically serves women through its Franciscan Alliance Spirit of Women membership program, which seeks to bring together women of all ages and backgrounds by motivating and inspiring them to make positive changes in their lives. Franciscan does this through innovative clinical care, education, and wellness programs. 90. In December of 2011, Franciscan was selected by the Center for Medicare & Medicaid Services as one of thirty-two Pioneer Accountable Care Organizations ( ACOs ). ACOs are groups of doctors, hospitals, and other health care providers who come together voluntarily to give coordinated high quality care to their Medicare patients. The goal of coordinated care is to ensure that patients, especially the chronically ill, get the right care at the right time, while avoiding unnecessary duplication of services and preventing medical errors. 91. Franciscan serves individuals of all faiths. Franciscan receives religious information in order to meet the physical and spiritual needs of its patients, but does not discriminate on the basis of religion. 92. Franciscan has approximately 18,000 employees, approximately 600 of which are physicians. Franciscan does not inquire about the religious commitments of its applicants for employment; as a result, it does not know how many of its employees are Catholic. 93. Franciscan s benefits-eligible employees may participate in a number of health benefits programs, depending on the region in which they work: Central Indiana Region, Northern Indiana Region, Western Indiana Region, and the South Suburban Chicago Region in Illinois. 17

94. Franciscan s approximately 3,963 benefits-eligible employees in its Central Indiana Region are offered six Advantage Health Solutions, Inc. fully-insured benefits program options. All six of these Advantage health plans lost their grandfathered status as of January 1, 2012 after Franciscan added various co-pay and co-insurance provisions to those plans. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). 95. Franciscan s approximately 8,266 benefits-eligible employees in its Western Indiana and Northern Indiana Regions are offered six benefits plan options, four of which are self-insured plans administered by Advantage Health Solutions, Inc., and two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans. All four of the self-insured Advantage plans lost their grandfathered status as of January 1, 2012 after various co-insurance provisions were added to those plans. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). The two Blue Cross Blue Shield of Illinois fully-insured benefits plans are not grandfathered, and never were, because they were not in existence as of March 23, 2010. 96. Franciscan s approximately 1,789 benefits-eligible employees in its South Suburban Chicago Region are offered three benefits plan options, two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans, and one of which is a self-insured benefits plan that is administered by Blue Cross Blue Shield of Illinois. All three of these plans lost their grandfathered status as of January 1, 2011 after employee premiums were increased. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan 18

believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). 97. None of the benefits plans offered by Franciscan covers abortion, sterilization, or contraceptives. Franciscan s employee health benefits plans years begin on January 1st. E. University of Saint Francis ( Saint Francis or University ) 98. Plaintiff Saint Francis is a nonprofit corporation that confers undergraduate and graduate degrees. The University s members are the Sisters of Saint Francis of Perpetual Adoration Provincial and her Council. 99. The University was established in 1890 in Lafayette, Indiana as a teacher training school for the Sisters of Saint Francis and transformed into a Catholic, Franciscan-sponsored, coeducational, liberal arts college in 1940. In 1944, Saint Francis moved to its current location in Fort Wayne, Indiana, and was designated a university in 1998. 100. Saint Francis has approximately 2,300 undergraduate and graduate students enrolled, the majority of which are from the midwest, although students from other regions of the United States and foreign countries attend as well. 101. As described in its mission statement, Rooted in the Catholic and Franciscan traditions of Faith and Reason, the University of Saint Francis engages a diverse community in learning, leadership and service. The University s five widely held Franciscan values are: (1) reverence the unique dignity of each person; (2) encourage a trustful, prayerful community of learners; (3) serve one another, society and the Church; (4) foster peace and justice; and (5) respect creation. 102. At the same time, the University s commitment to continuous study and improvement is underscored by its participation in the Academic Quality Improvement Program of the Higher Learning Commission, and by the variety of professional accreditations for its 19

academic programs. Quality at the University of Saint Francis is a persistent quest for excellence shaped by the needs of students, professional and academic standards, and best practices. 103. Saint Francis pursues the highest academic achievement in every discipline. To that end, the University is composed of five undergraduate schools Arts & Sciences, Business, Creative Arts, Health Sciences, and Professional Studies and one Graduate School. The Graduate School offers degree and certification programs in art, business, education, environmental science, school and mental health counseling, nursing, physician assistant, theology, and psychology. In the past two decades, Saint Francis has conferred more than 5,000 graduate degrees. 104. Nearly half of the University s students are studying health care, which makes Saint Francis the largest provider of health care graduates in the northern half of Indiana. For example, Saint Francis offers an associate, bachelor, and master degree in nursing, in addition to programs such as radiologic technology, physical therapy, and surgical technology. 105. Students currently enrolled in the University s Crown Point, Indiana campus are exclusively pursuing health care degrees. 106. At the core of the University s curriculum is the Franciscan value of service to all, and its mission to educate and serve others extends beyond the borders of campus. 107. The Saint Francis community, through its Center for Service Engagement, creates positive change in local, national, and global communities. Saint Francis also acknowledges that although many in its community do not daily experience social justice issues such as hunger, homelessness, poverty, or illiteracy, these issues continue to affect the lives of many in the global community. Through service, God calls the Saint Francis community to work for the common good in the world. 20

108. Service opportunities through the Center for Service Engagement help nonprofit agencies and organizations maintain and/or expand their programs to those in need, while providing students, faculty, staff, and alumni with opportunities to build awareness, appreciation, and commitment to social justice issues that impact everyone. Through community/volunteer service, service-learning, service days or projects, and service/missions trips, the University is committed to the Franciscan values of Serve one another, society and the Church and Foster Peace and Justice. 109. For example, during academic year 2010-2011, campus clubs, organizations, and residence hall students engaged in multiple service activities. Campus-wide events included the 3rd Annual USF Feeds the Fort, a collection to benefit a local food bank, through which over 34,200 items were collected and approximately $9,000 was raised. The University s 8th annual MLK Day of Service involved approximately 256 faculty, staff, students, and alumni in service at eighteen local agencies, providing around 910 hours of service. 110. During the 2009-2010 academic year, approximately 1,820 students contributed around 12,125 service hours to alleviating issues related to homelessness, feeding the hungry, and preserving the environment. These service hours aided programs such as Fort Wayne s Rescue Mission, Habitat for Humanity, Community Harvest Food Bank, Black Pine Animal Park, and Great Tree Canopy Comeback. 111. For its service, the University has been awarded the President s Volunteer Service Award, created by the President s Council on Service and Civic Participation. 112. In addition, Saint Francis hosts a number of educational events, lectures, and programs on its campuses that are open to the public. For example, for the past eighteen years 21

the University has hosted a CEO Forum, which is a three-quarter day seminar attended by around 500 business people from the community. 113. The University is also committed to providing a quality education to students of all financial backgrounds. More than 99% of the University s students apply for and receive some form of financial aid, with the Office of Student Financial aid awarding nearly $16 million in institutional grants and scholarships as well as more than $24 million in federal and state grant funds to undergraduate students in the 2010-2011 school year. Over 50% of the University s students are low income, first generation college attendees who qualify for federal grants. 114. Faith is at the heart of the University s efforts. The apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities, provides that the objective of a Catholic University is to assure... [f]idelity to the Christian message as it comes to us through the Church. 115. In accordance with the Ex Corde Ecclesiae, Saint Francis believes and teaches that besides the teaching, research and services common to all Universities, it must bring[] to its task the inspiration and light of the Christian message. Catholic teaching and discipline are to influence all university activities, and [a]ny official action or commitment of the University [must] be in accord with its Catholic identity. 116. In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative. 117. Though committed to remaining a distinctly Catholic institution, the University opens its doors to students, academics, and prospective employees of all faiths and creeds. The majority of the University s faculty, students, and staff are not Catholic. 22

118. The University has approximately 2,300 students. Approximately 30% of the undergraduate population is Catholic and approximately 20% of the graduate population is Catholic. The University s students are not offered a health plan. 119. The University has approximately 413 total faculty and staff members. While approximately 50% of the faculty are Catholic, only 31% of all University employees are Catholic. Saint Francis retains approximately 346 full-time employees eligible for health care benefits. 120. The University s employees are offered a self-insured health care plan. This plan does not cover abortion, sterilization, or contraception. The plan year begins on January 1st. 121. The health plan offered by Saint Francis to its employees was at one point in time grandfathered under the Affordable Care Act s definition of a grandfathered plan. Changes made to the University s employee health plan in 2012, however, caused the plan to lose its grandfathered status. Going forward, Saint Francis s employee health plan will not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). F. Our Sunday Visitor, Inc. ( Our Sunday Visitor ) 122. Plaintiff Our Sunday Visitor is a nonprofit Catholic publishing company located in Huntington, Indiana. Our Sunday Visitor is comprised of a publishing division and an offertory solutions division. 123. The publishing division is responsible for the writing and promotion of six religious periodicals, which include: OSV Newsweekly, Take Out: Family Faith on the Go, The Catholic Answer, The Priest, My Daily Visitor, and Grace In Action. In addition to the religious 23

periodicals, Our Sunday Visitor publishes and markets over 1,800 products including books, parish education resources, and curricula. 124. The offertory solutions division offers envelope products and services to Catholic parishes throughout the United States. 125. As a nonprofit company, Our Sunday Visitor serves the Church not only with its products and services, but also by financially supporting charitable activities of other Catholic organizations. The Our Sunday Visitor Institute funds Catholic projects throughout the United States, including projects that address evangelism, catechesis, service to the needy, vocation, and stewardship. 126. For example, the Institute supports a program at Seton Hall University that is designed to encourage graduate students to teach for two years in New Jersey s poorest Catholic schools while earning their master s degrees. New Jersey s poorest Catholic schools serve students of all faiths, in keeping with the Catholic value to serve all. 127. The Institute also supports Bethlehem Farm, Inc., which is a Catholic community in Appalachia dedicated to serving the area s poor in various ways, including home repair, soup kitchens, and visiting the sick. 128. In the past five years, the Institute has granted approximately $30,000 to seven dioceses in Florida that developed a one year volunteer program for fifteen to twenty-five recent college graduates from throughout the United States to serve in health care, homeless shelters, food banks, prisons, and inner-city Catholic schools. 129. Between its publishing and offertory solutions divisions, Our Sunday Visitor employs approximately 300 benefits-eligible employees. Our Sunday Visitor does not document the religious status of its employees. 24

130. Our Sunday Visitor s employees are offered a self-insured health care plan. This plan does not cover abortion, sterilization, or contraceptives for non-therapeutic purposes. Our Sunday Visitor s plan year begins on October 1st. 131. The health plan offered by Our Sunday Visitor to its employees was at one point in time grandfathered under the Affordable Care Act s definition of a grandfathered plan. Changes made to its employee health plan as of January 1, 2012 caused that plan to lose its grandfathered status. Going forward, Our Sunday Visitor s employee health plan will not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. 54.9815-1251T(a)(2)(i). II. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 132. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 119 (2010) (collectively, the Affordable Care Act or the Act ). 133. The Affordable Care Act established many new requirements for group health plan[s], broadly defined as employee welfare benefit plan[s] within the meaning of the Employee Retirement Income Security Act ( ERISA ), 29 U.S.C. 1002(1), that provide[] medical care... to employees or their dependents. 42 U.S.C. 300gg-91(a)(1). 134. The Affordable Care Act requires an employer s group health plan to cover certain women s preventive care, leaving the definition of that term up to an agency within HHS. Specifically, it provided that [a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and 25

shall not impose any cost sharing requirements for (4) with respect to women, such additional preventive care and screenings... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph. Pub. L. No. 111-148 1001(5), 124 Stat. 131 (codified at 42 U.S.C. 300gg-13(a)(4)). 135. Because the Act prohibits cost sharing requirements, the health plan must pay for the full costs of these preventive care services without any deductible or co-payment. 136. Some provisions of the Affordable Care Act exempt individuals with religious objections. For example, individuals are exempt from the requirement to obtain health insurance if they are members of a recognized religious sect or division that conscientiously objects to acceptance of public or private insurance funds or are members of a health care sharing ministry. 26 U.S.C. 5000A(d)(2)(a)(i) and (ii) (conscientious objectors); 5000A(d)(2)(b)(ii) ( health care sharing ministry ). 137. Not every employer is required to immediately comply with the U.S. Government Mandate. Grandfathered health plans are exempt from the preventive care U.S. Government Mandate. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,276, 41,731 (July 19, 2010) ( Interim Final Rules ); 42 U.S.C. 18011. Such plans cannot undergo substantial change after March 23, 2010. Id. HHS estimates that 98 million individuals will be enrolled in grandfathered group health plans in 2013. Id. at 41,732. 138. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties. 26

139. Under the Internal Revenue Code, employers who fail to provide all coverage required by the U.S. Government Mandate will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. 4980H(a), (c)(1). 140. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See id. 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this assessment applies to employers who violate the preventive care provision of the Affordable Care Act). 141. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the preventive care provision of the Affordable Care Act). 142. ERISA may provide for additional fines. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these fines can apply to employers and insurers who violate the preventive care provision of the Affordable Care Act). 143. The Affordable Care Act limits the Government s regulatory authority. The Act and an accompanying Executive Order reflect a clear intent to exclude abortion-related services 27

from the Act and regulations implementing it. The Act itself provides that nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services... as part of its essential health benefits for any plan year. 42 U.S.C. 18023(b)(1)(A)(i). The ability [to] determine whether or not the plan provides coverage of abortifacients is expressly reserved for the issuer of a qualified health plan, not the Government. Id. 18023(b)(1)(A)(ii). 144. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004 states that [n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V., 507(d)(1), 125 Stat 786, 1111 (2011). 145. The intent to exclude abortions was instrumental in the Affordable Care Act s passage, as cemented by an executive order without which the Act would not have passed. Indeed, the Act s legislative history could not show a clearer congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as budget 28